the exception of contraband of war. 3. Neutral goods, with the exception of contraband of war, are not liable to capture under an enemy's flag. 4. Blockades, in order to be binding, must be effective; that is to say, maintained by a force sufficient really to prevent access to the coasts of the enemy.' This Declaration was not to be 'binding, except between those Powers which have acceded to, or shall accede to it ;'1 but it was also agreed, by the plenipotentiaries, that the 1 Protocols, Nos. 23 and 24, Congress of Paris, 1856; President's Message, August 12, 1856; Phillimore, On Int. Law, vol. iii. app. p. 850; Ortolan, Diplomatie de la Mer, tome ii. app. spécial, pp. 516-518. The Declaration of Great Britain made at the commencement of the Crimean war (1854) clearly evinces that at that period Great Britain had retained all her belligerent rights on this subject unimpaired. What may be her policy in a future war is a matter of conjecture; but she has no alternative so long as she adheres to the Declaration of Paris. Professor de Martens, writing to the Russian Golos, in November 1876, concerning the suggestion that Russia should issue letters of marque, to enable privateers to act against British commerce in case of war, in defiance of the Declaration of Paris, says, that while rendering justice to the patriotic motives which inspired such counsels, he considers it a duty to point out their danger and injustice. On the other hand, it is argued that the abolition of privateering has guaranteed England against the only danger she had to fear in the event of war— that is, the ruin of her commerce-that it is the only weapon that can be used by a Continental power against England, that it is a terrible one, furnishing, to the antagonist of the United Kingdom, the means of injuring the latter far more than England, with all her maritime supremacy, could do on her side. As to the argument that the abrogation of the article of the Declaration of 1856, abolishing privateering, would involve that of the other articles stipulating that a flag covers merchandise, that an enemy's property cannot be seized in neutral bottoms, and that a blockade must be effectual, and that England could, therefore, revert to her old policy of declaring on paper all her enemies' ports in a state of blockade, and of searching neutral vessels for enemy's goods-the answer is that, under the existing maritime code, England has sufficient vessels at her command to blockade effectively all the ports, and could, therefore, practically ruin the commerce of a country with which she was at war, as was the case with Russia during the Crimean war. During the Franco-German war, 1870, the Prussian Government ordered the creation of a volunteer navy, the ships and the crews of which were provided by private persons; the officers received temporary commissions, and sailed under the flag of the Royal Navy, although not forming part of it. The French Government considered this volunteer fleet to be an evasion of the Declaration of Paris, 1856, and drew the attention of the British Government to it, whose law officers were of opinion that there was a substantial difference between a volunteer navy and privateers. This opinion, however, is open to much doubt. Patriotic Society of Russia in 1878 also formed a volunteer fleet for the purpose of avenging the diabolical machinations of Lord Beaconsfield.' The avowed object of the Society, in time of peace, was to maintain a nursery of seamen for the Russian fleet; hitherto these cruisers have been manned by the Imperial marine. The Powers which had or should agree to it, 'cannot hereafter enter into any arrangements in regard to the application of the right of neutrals in time of war, which does not, at the same time, rest on the four principles which are the objects of the said Declaration.' This Declaration does not affect the right to issue letters of reprisal. other § 28. This Declaration of the Paris Conference was com- Opinion of municated to other States, and all have now adhered to it, States with the exception of Spain, Mexico, Venezuela, and the United States. Spain and Mexico adopted the last three articles, but, on account of the first article, declined acceding to the entire Declaration. The United States adopted the second, third, and fourth propositions, independently of the first, offering, however, to adopt that also, with the following amendment, or additional clause: and the private property of the subjects, or citizens of a belligerent on the high seas, shall be exempted from seizure by public armed vessels of the other belligerent, except it be contraband,' which offer, however, was not accepted. The abstract right, under the law of nations, to use privateers, cannot be questioned; and it must also be observed that the advantage to be derived from the use of private armed vessels in case of war would be much greater to the United States than to any European power; moreover, the European States, most active in advocating the abolition of privateering, were its strongest supporters when it was most conducive to their own power. Unfortunately, nations, like individuals, are more influenced by immediate self-interest, than by the progress of civilisation, the ultimate peace of the world, and the happiness of the human race.1 teers, missioned § 29. It being established that a belligerent has a right Privato commission and use private armed vessels in carrying on by whom the war, it remains to enquire by whose authority such com- commissions may be issued, and who may use them. The right to issue letters of marque is inherent in the Government of every independent State, and is a part of its war-making power; but its own constitution, or internal laws, must determine by what particular branch of the Government this right is to be exercised. In 1861 the revolted Confederate States of America 1 Marcy, Letter to Count Sartiges, July 28, 1856; the Paris Moniteur, July 14, 1858; Lawrence, Visitation and Search, p. 195. employed privateers against the Federal States, in consequence of which a Bill was introduced into the Senate, during the Session of 1861-2 (at the suggestion, it was stated, of the Government, but failed to become law), to authorise the President, during the continuance of the insurrection, to grant letters of marque and reprisal, and to revive in relation to all that part of the United States where the inhabitants have been declared in a state of insurrection, and the vessels and property to them belonging, the Acts passed on this subject during the war of 1812. It was opposed, because it was assumed that letters of marque could only be granted against an independent State, and that their issue might be regarded as a recognition of the Confederate States. Privateering, when attempted by the Confederate States, was branded by the President, and the public sentiment, of the North as piracy. By the second section of the Act of August 5, 1861, the President might instruct the commanders of armed vessels sailing under the authority of any letters of marque or reprisal granted by the Congress of the United States, or the commanders of any other suitable vessels,' to subdue, &c., vessels intended for piratical aggressions. The Secretary of the Navy, in a note to the Secretary of State, October 1, 1861, says 'under the (above) clause, letters permissive under proper restrictions, or guards against abuse, might be granted. This would seem to be lawful, and perhaps not liable to the objection of granting letters of marque against our own citizens, and that, too, without law or authority from the only constitutional power that can give it.' Early in 1863 a Bill was passed by Congress empowering the President, during three years, to issue letters of marque, but this power does not seem to have been employed. When, in 1569, the Prince of Orange issued letters of marque to the gentlemen and others who became so notorious as the gueux de mer, many of them were punished as pirates; 'not so much,' says Martens, 'on account of their excesses, as because it was not thought that the Prince of Orange had power to grant such letters of marque.' The authority which 2 1 See Congressional Globe, 1861-62, p. 3325. 2 It is an open question whether privateers, commissioned by a deposed sovereign, are pirates or not. For arguments on the subject see An Essay concerning the Laws of Nations and the Rights of Sovereigns, by Matthew Tyndal, LL.D., London, 1734. This work is quoted at some grants the commission determines what limits shall be imposed upon the exercise by the privateer of belligerent rights; and, if such vessel exceed the limits of its commission, and commit acts of hostility not warranted by the letter which it carries, if such acts be not in violation of the laws of war, it is responsible to and punishable by the State alone from which the commission was issued. A vessel which takes a commission from both belligerents is guilty of piracy, for one authority conflicts with the other. But a nicer question has arisen with respect to a vessel which sails under two or more commissions granted by allied powers against a common enemy. The better opinion seems to be, that such practice is irregular and inexpedient, but does not carry with it the substance or name of piracy. Kent does not make this distinction, but states the proposition in general terms, 'that a cruiser, furnished with commissions from two different powers, is liable to be treated as a pirate.' Hautefeuille says, that if a privateer receives commissions from two sovereigns, she is to be treated as a pirate, 'even where the letters of marque emanate from two powers allied for a common war.' Another question to be noticed is, what is the character of a vessel of a neutral State, armed as a privateer, with a commission from one of the belligerents? Phillimore says, 'that such a vessel is guilty of a gross infraction of international law; that she is not entitled to the liberal treatment of a vanquished enemy, is wholly unquestionable; but it would be difficult to maintain that the character of piracy has been stamped upon such a vessel by the decision of international law.' Kent is of opinion that the law of the United States, which declares length by Sir R. Phillimore (Int. Law, i. 362), who inclines to the opinion that such ships are pirates. Lord John Russell, writing to Lord Lyons, January 24, 1862, says, respecting the letter of Judge Daly on the question whether Southern privateers' men can be regarded as pirates: 'Her Majesty's Government are glad to find that the pretension has been so successfully combated. There can be no doubt, that men embarked on board a man-of-war or privateer, having a commission, or of which the commander has a commission, from the so-called President Davis, should be treated in the same way as officers and soldiers, similarly commissioned for operations on land. An insurrection extending over nine States in space, and ten months in duration, can only be considered as a civil war; and persons taken prisoners on either side, should be regarded as prisoners of war. Reason, humanity, and the practice of nations require that this should be the case.' (See opinion of Judge Daly, ante, ch. iii. § 21, note.) As to illegal capture by privateers, see ch. xxxi. § 31. Treaty stipulations such an act a high misdemeanour, punishable by fine and imprisonment, is 'in affirmance of the law of nations.' Ortolan thinks that such an act is not piracy in international law, but that it ought to be made so. Hautefeuille is of opinion that they are not to be treated as pirates, unless made so by interior laws of treaty stipulations of the neutral State. We have already alluded to the instructions of European States on this question, and will only add here, that by the law of Plymouth Colony, in 1682, it was declared to be felony to commit hostilities on the high seas, under the flag of any foreign power, upon the subjects of another power in amity with England; and the same acts were declared to be felony by the law of the Colony of New York in 1699.1 § 30. Some States have covenanted, in their treaty stipulations, that they will prevent their subjects, under heavy penalties, from accepting commissions or letters of marque from other States. Such was the character of the treaty of September 26, 1786, between France and England. In other treaties it is stipulated that no subject, or citizen of either of the contracting powers, shall accept a commission or letter of marque to assist an enemy in hostilities against the other, under pain of being treated as a pirate. Such is the character of the treaties entered into between the United States and France,2 Holland, Sweden, Prussia, Great Britain, Spain, Columbia, Chili, &c. Some of these treaties, however, have expired without this provision being renewed in any subsequent treaty. It may be remarked that, whatever be thought of the character, in international war, of a neutral vessel taking a commission from a belligerent, the other belligerent is justified in treating such vessel as a pirate, when it is so stipulated in a treaty 1 Kent, Com. on Am. Law, vol. i. p. 100; Phillimore, On Int. Law, vol. i. § 358; Kluber, Droit des Gens, § 260; Ortolan, Dip. de la Mer, liv. ii. ch. xi.; Hautefeuille, Des Nations Neutres, tit. iii. ch. ii. ; Abreu, Tratado de las Presas, pt. ii. cap. i. §§ 7, 8; Martens, Essai sur les Armateurs, ch. ii. § 14; the Spitfire,' 2 Rob., 285. · 2 The French Government, when in alliance with the American States, in 1778, observed more than usual respect towards neutral vessels, but in 1796 they changed their views, and seemed to think that privateering could not be too much encouraged, and for some years after privateering absorbed the whole naval energy of the State. This was carried to such an unlimited and licentious degree, that neutral vessels avoided the French coast, which entailed much injury on the commerce of that country. Accordingly we find a decree of Napoleon Buonaparte, annulling the decisions of Merlin and others, and restoring the usages of 1778. |